YouTube and the major film studios
|FEATURES - MOVIES|
We're (potentially) damned if we do and impersonated if we don't - will there ever be a clear policy on the consumer's re-use of copyrighted movie material..?
In the course of writing lists or features, it's frequently occurred to myself and other writers to upload a clip from a movie to YouTube, by way of illustrating a point - and embedding it in the article. How often this goes through smoothly and how often it doesn't has become quite interesting in the last few years.
After uploading a short clip from The Exorcist to illustrate an entry in Top 10 most frightening sounds in movies, I was met with the familiar legend Video blocked in some countries text, next to the video in question...
The 'View Copyright Info' link indicated that the uploaded video had been content-matched using YouTube's Content ID tool, and was blocked either worldwide or in enough countries as to make the inclusion of the video-embed undesirable.
[ Interestingly there appears to actually be no 'blocked' icon at YouTube in such cases. Instead there is the 'world' icon sitting next to the word 'Public' - even when the 'some countries' that the video is blocked in transpire to be 'every country on Earth'. Maybe you can watch such a video off-world..? ]
Unusually, I didn't bother to delete the now-useless (except for my own personal viewing) video, and chanced to see it again in the list today, while researching this article. Apparently the devil has overcome his shyness...
The warning had been changed to Matched third party content, and the 'Copyright info' page informed me that though Warner Bros. Entertainment were registered as the owners of the original content (via the video/audio-matching algorithms it supplied to youTube's Content ID program for The Exorcist), "No action is required on your part. Your video is still available worldwide".
Who knows what changed Warner Bros.' mind this time? The expiry of a bulk-sold collection of TV viewings to network/cable? The start of a bulk-sold collection of TV viewings to network/cable? A new blanket policy that lengthens the permitted run-time for unauthorised uploads of their content? A 3-month dip in DVD and/or Blu-ray sales for The Exorcist? Or perhaps they think Shadowlocked is cool and are giving us special dispensation..?
Meanwhile, back on Earth: once a copyright holder has the YouTube 'address' of any upload that contains its content, it only has to rewrite the general or film-specific policy to change how available - or not - your previously uploaded version of their content is. The conglomeration of studios and corporate media concerns combines with lack of communication between their legal and marketing departments to leave so many productions in such a tangled web of internally contrary policies regarding redistribution...that even Google, owners of YouTube, can't keep up:
Some copyright holders want control over every use of their creation. Many professional artists and media companies post their latest videos without telling us, while some home video-makers don't want their stuff online. Some legal departments take down a video one day and the marketing department puts it up the next. Which is their right, but our community can’t predict those things, and neither can we...
The confusion arguably set in around 2008, when the movement to monetise (instead of take down) unauthorised content left CBS embracing the prospect of user-generated publicity on YouTube while sister-company Viacom was still in the middle of a multi-billion dollar lawsuit against the video-sharing site. CBS was joined in that period by the likes of Universal Music, Lionsgate, Electronic Arts, and subsequently by many other major names - as we shall see shortly.
It was the time of Facebook-for-everyone, the time when 'viral marketing' transited from the water-cooler to the company policies of PR sites; a time when it began to occur to the major studios that they might consider the harsh object-lesson learnt by the music companies' eternal take-down war with the MP3 uploaders - particularly since their own product could not be encapsulated in the 10-minute limits of a YouTube upload (recently extended to 15 minutes for many users, though to little practical difference, in these circumstances).
Young people, people far cooler than they were, the very people whose wallets, purses and general esteem the media giants were desperate to invade, were out there doing work and getting product-coverage that their own marketing departments would have killed to achieve by conventional methods. They weren't getting a dime for all this work, and to boot they could now be completely controlled by the Content ID architecture.
The trouble was, this relaxation could never be implicit. Technically, there's no ambiguity that we are 'doing wrong' in uploading our favourite film clips to YouTube.
Posting copyright-infringing content can lead to the termination of your account, and possibly monetary damages if a copyright owner decides to take legal action (this is serious—you can get sued!).
On the other hand, actually, there might be a little bit of ambiguity...
It's possible that you may be permitted to include small excerpts from copyrighted material in your video if what you intend to use is insubstantial or is incidentally included, or where the intended use you have for the copyrighted material falls within a exception or limitation to copyright under the law in your country.
We can't give you advice on either of these topics, and if you do plan to use even a small portion of copyright material in your video we'd strongly advise you to take legal advice first.
Fair Use could in theory protect a lot of fan-edits and similar mash-ups or montage clips on YouTube that were blanket-blasted by the major studios, and even complete clips from movies; but Fair Use only ever shows up in court - and no matter how viral your 'Donate To My Legal Funds!' campaign has gone, you'd inevitably be up against deeper pockets than your own.
So yes, it's naughty. Don't do it.
Well, not for TV shows, anyway - see the standard warning of YouTube's upload page on the right, and search in vain for any mention of movies.
Movies don't have to worry, since they are implicitly included in the general warnings about copyright (see above) - and yet it is noteworthy how they are not explicitly mentioned in the standard warning.
The legal position of someone who uploads copyrighted movie clips to YouTube - for fun or educational purposes - is a very murky one in the light of the 'grey area' from which the majors now want to exert control of their user-uploaded content, via the algorithm-matching of the Content ID tool. From one point of view, if you really can 'get sued' (see first quote above) for doing this, allowing any exceptions presents a climate of tacit invitation to do so - with the content-owner reserving all rights to 'release the hounds' at any time in the future, while palpably encouraging select abuse of copyright laws that it will not qualify in any meaningful way. Content owners are watching us from the edge of the playground with a loaded rifle, but for the most part they're just ignoring us from the corner of their eye.
The amazing thing is that even commercials are included in the same upload-page warning that fails to mention movie clips.
The most interesting aspect of YouTube's Content ID tool providing the ability for "Rights owners...to block, track or monetise their content" is the 'track' aspect. Apart from facilitating the future enhancement or negation of rights to feature sections of particular movies on YouTube, this system provides content-owners with a useful and free-of-charge barometer to gauge market-interest in their output; spikes in readership on particular video-posts can prove useful in locating and then quashing or encouraging the hot source-pages which embedded them.
As an exercise to give a glimpse at the current state of policy by the major studios regarding the uploading of their content., I decided to upload a number of video-clips from movies to YouTube and see what the Content ID tool decided to do about algorithm matches.
I was immediately interested to see how the company with (historically) the most ferocious protectionist policies outside of the Hefner empire would react to an upload. Unfortunately I'm not a huge fan of The Mouse in general - at least in Disney's traditional animated and CGI output. But I can tell you that Walt isn't worried about 1943's Victory Through Air Power hitting YouTube...
The clip from this wartime Disney propaganda movie wasn't flagged as recognised content - although doubtlessly The Mouse, like all Content ID participants, has discretion to not make the uploader aware of the content match. In any case, no match was signalled. I decided to check out the state of Disney clip uploads on YouTube, expecting a barren wilderness of gunned-down attempts to share The Joy Of Walt, a tundral expanse of mere trailers and PR clips...
Stealth marketing, perhaps? Is the vaguely-named RandomMiss1995 genuine, a LonelyGirl15-style Disney construct, a favourite of the company...or perhaps a PR with an astroturfing remit? If Disney haven't shot her down after a million and a half hits, it's a fair bet they're not planning to anytime soon.
Well, a look at the eye-watering jpeg background of RandomMiss1995's YouTube channel profile (wherein we find the words 'Mad Girl Productions' nestling in with girly vibe-words like 'joyful', 'hysterically' and 'priceless') reveals all. The cute text-speak illiteracy of the profile blurb ("Okay just kno you are awesome for viewing ma channel i hope u check out ma videoss you see i am a simple girl really i Luv RNB and i am gaga for lady gaga i luv beyonce wiv all ma heart she is awesome") is thrown into sharp relief by the official website of the marketing company that Disney has 'allowed' to post this clip. I'm willing to bet that in spite of the year mentioned in the uploader's moniker, there aren't any sixteen year-olds working at that firm. I'm also willing to bet it's no coincidence that this video was uploaded on exactly the same day that Toy Story 2 got a new disc release.
[ Note also the use of 'Part 1' and 'HQ' in the title of RandomMiss1995's post above; these are both frequent search-terms for YouTubers who are looking for complete movies that have been uploaded in a sequence of 10-minute segments - even though the three videos posted by 'RandomMiss1995' amount to less than 30 minutes of Toy Story 2's 92 minutes runtime. ]
I downloaded the FLV file of an official Disney clip from the company's YouTube channel and reuploaded it to YouTube without the upload getting flagged - or without, in any case, being informed that it had been flagged. But for all I know, the ID checksum of that particular clip has been pre-approved site-wide on YouTube.
Another part of the problem of determining whether a particular film is content-monitored on YouTube is the absence of any knowledge of the content-holder's policy related to the movie and the (by experience, fairly slim) possibility that a clip is not long enough to get 'recognised'.
Uploading a 31-second clip of the Wachowski brothers' 2008 release Speed Racer got me no warnings or caveats at all.
Uploading an extended version of the clip (1:24) got me flagged, but with no bans...
Does this indicate that Warner Bros. Entertainment are okay with clips under a minute in length (or with clips from Speed Racer in that range, anyway)..? Or that the recognition algorithm failed, with only 31 seconds to operate in?
I rather doubt the latter - try uploading even a few seconds of any movie in the Alien franchise and marvel at how little YouTube's Content ID-matcher really needs to recognise a film. Warners definitely have a Content ID profile uploaded for Speed Racer, but they only bothered to even clear their throats at me when my clip went above a minute. What sense does that make when both my uploaded Speed Racer clips are available publicly at the time of writing?
One possibility is that Warners' content policy for Speed Racer is currently set to 'ignore' clips of less than a minute, either because prosecuting such a miniscule snippet of a movie would be worse PR for Warners than suffering it, or for reasons of resource conservation on the part of Warners legal department, YouTube's servers - or both. Also, sub-minute clips may be considered 'promotional' and post-minute clips heading towards 'infringement'.
Under 'Invalid reasons to dispute a claim' (i.e. to dispute a worldwide or country-specific block on an uploaded video) comes the caveat about the way not all uploaders are treated equally...
Copyright is all about the owner's right to decide who can use their content. Someone else's use doesn't give you permission.
The official YouTube channel of any number of major film-sites are often stuffed with copyrighted videos provided by PRs acting on behalf of the movie studio or distributor. Sometimes these are 'ex-exclusive' videos, wherein the outlet was provided with a world-unique promotional clip from a movie and given exclusivity of it for a short period of time, usually hosting it locally to maximise inbound referrers. Once the exclusivity expires, there's no percentage for the 'favoured' site in paying for the streaming bandwidth any longer, and the local video-embed gets switched to a self-administered YouTube embed - or for an embed code provided by a PR.
That's all via 'official' channels. What about the apparently individual uploaders who succeed in getting major content past the Content ID checkpoint and go on to accrue hundreds of thousands - or even in excess of a million - hits..?
Well, you could try Five Tips For Stealth Marketing On The Local Web for an insight into what the benefits are of infiltrating the cliques of 'the kids'. Here you'll find all the creepy terms you love and some you maybe never even heard of (such as 'Duct Tape Marketing' - which basically means getting someone who you can profit from to like you), all in the pursuit of covert viral campaigning on YouTube, Facebook and other supposedly 'organic' sites. Or marvel at the full range of 'StealthBomber' software that can make you thousands of profitable YouTube buddies over at this site.
It's getting to be so that the hipper they are, the harder they are to believe. Returning briefly to Speed Racer (not a movie I have even seen, incidentally), it's interesting to note the activity of the YouTube user 'SpeedRacerCrap', who decided during that movie's junket period to post 11 clips from the film, the most successful of which has racked up a quarter of a million hits.
Additionally, SpeedRacerCrap admits in their profile that this is not their real YouTube channel, which is actually this one...
[ As if to continue the theme of confusion, the Channel 4 video featured on this user-page is not visible to me here in the UK, even though Channel 4 is a British broadcaster. I had to ask fellow Shadowlocked editor Gabe Ruzin in Denver what it is I was missing. It's a Bjork video... ]
I'm not casting any suspicion on the fan-led integrity of video-posts by Tripp393 - it just seemed odd to me that a YouTube poster would spontaneously create a new channel for the release of one movie during the crucial phase of its major PR-blitz; and that casual search results for the movie on YouTube only show actual clips from the film that are either uploaded by SpeedRacerCrap or (presumably via overt PR arrangement) the Reelzchannel account. Click through to later results and there are some exceptions, such as this post by KingKam362; he may have only posted 4 videos, but they are all promotional in nature and have collectively racked up over 2 and a half million hits. Interesting.
Video posts by 'The Man' (i.e. official channels) have a taint of monotonous regularity for spoiler-loving, authority-loathing geeks - problems which PR companies rarely have to face for a new Sex And The City movie. What conclusion can you come to once you realise that there are some 'intruders' in the house? You either consider everyone suspect, or (as stealth marketers would prefer), take the posts on trust.
Returning to my upload test and checking out the major studios' content on YouTube, the individuation of joint rights-holders has a pretty distinct influence on what major studio output is and isn't blocked. Columbia's output varies enormously in accessibility on YouTube, but their association with Marvel Studios makes any Stan Lee-inspired output hard to find.
Except that when you do find it, the numbers from apparently user-uploaded clips seem quite phenomenal. For instance a search on YouTube for Spider-Man 3 unearths mostly the dross of trailers, extras and the odd fan mash-up. Until you come to YouTube user SenrabMas, who not only succeeds in getting an HD Spider-Man 3 clip to 618,240 views at the time of writing, but seems to be going out of his way to look like a naughty boy by calling the post 'Spider-Man 3 - Eddie Brock Becomes Venom DVD Rip'. Looks bad? But no, wait...
...I must be wrong - click on another of this user's Spider-Man 3 videos and we see that Sony (Marvel/Columbia, etc) have blocked it:
So the video 'Spider Man 3 jazz club scene DVD rip' - which reached 410,000+ views - is blocked, and another left standing with 600,000+ views in hi-definition and with the words 'DVD rip' also plastered all over it. Is this some disinformation in order to increase the credibility of the other post, or are Sony really oblivious to a huge, immensely popular and pretty long (2:26) HD extract from Spider-Man 3 - by a user they have already banned once for posting from that film? I honestly don't know. If it's stealth marketing and astroturfing, then I guess it's working.
[ Incidentally, all of the SenrabMas Spider-Man 3 posts occurred 4-5 months after the theatrical release, but in the month's lead-up to the Blu-ray/DVD release for the movie, as well as the October 2-disc edition, Limited Edition and Trilogy. ]
On the 007 franchise, Casino Royale (co-produced with Revolution Studios, EON Productions and Metro-Goldwyn-Mayer) has gone the monetisation route in this clip, with featured music also flagged in it. Columbia's extremely recent release The Social Network seems to be unimpeded at this post, and the company seems to have found a less protective partner than Marvel in Relativity Media, with whom it released Zombieland. Columbia's international propriety of 2009's Terminator Salvation has allowed this clip to get to over 800,000 hits (though this may have been by arrangement, and I don't know what the video looks like from the US side, where Warner Bros, have the rights), while a Pineapple Express clip (suspiciously, from a YouTube user who has posted nothing else) has a robust 137,648 views at the time of writing this.
Warner Brothers, who have so kindly released my Exorcist clip in recent weeks, seem to have no problem with this extract from Tim Burton's Beetlejuice, which has garnered over 900,000 views despite being in high quality and featuring a copyrighted song (and interestingly, posted once again by a 'hit-and-run' YouTube account with only two uploaded videos to its credit).
Paramount seems hamstrung by its association with Marvel Studios on Iron Man 2, with S. Lee and friends preferring to handle their own uploading, apparently, and seem equally constrained by Dreamworks for How To Train Your Dragon.
20th Century Fox seem to have let a few stragglers through Minority Report's Content ID filter, and my attempt to upload a clip from Jonathan Frakes' Thunderbirds resulted in a post that is only visible in the UK, where Granada retain the European rights to the franchise (and most other Gerry Anderson franchises).
NBC Universal's North American stake on the excellent 2008 black comedy In Bruges meant that my clip upload was blocked in the US, while Lionsgate decided to monetise my uploaded clip of 2003's The Grudge by adding commercials. NBC Universal banned my uploaded clip of Jurassic Park: The Lost World all over the world, though they seem able to tolerate a 16-second clip. A commenter at this 45-second clip from Lost World claims that the video has been flipped. If so, might that have foiled the recognition algorithm?
Paramount, Dreamworks and Spyglass seem of a mind that Ricky Gervais' 2008 Ghost Town not have any clip presence on YouTube, while Dreamworks and Universal roundly rejected my 3:48 Gladiator (2000) clip whilst allowing this popular 15-second excerpt.
Substantial clips of mine that were not flagged, monetised or hamstrung included the Dimension/Alliance David Cronenberg outing eXistenZ (1999), the Miramax Films/Entertainment Film Distributors (UK) Scorsese film Gangs Of New York (2002), Stanley Kubrick's Dr. Strangelove (1964, Columbia), Screen Gems' (USA) and PolyGram Pictures' Arlington Road (1999), MTV Films and Lakeshore Entertainment's Æon Flux (2005) and Ridley Scott's Blade Runner (1982, via The Ladd Company, Tandem Productions and Sir Run Run Shaw).
Films San Frontiere banned my clip of Tod Browning's Dracula (1931), but only in the French region in which they currently hold the copyright for the movie, while Warner Brothers flagged my clip of 1957's The Curse of Frankenstein without monetising or impeding it...
...and so it goes on. In terms of trying to comprehend policy, it's a mess. Absolutely none of it is technically allowed - and if it wasn't for the aggregate force of grass-roots' spending power, none of it would be happening.
But as Lionsgate Entertainment's president of digital media Curt Marvis told the New York Times when Content ID kicked in back in 2008 "we...don’t like the idea of keeping fans of our products from being able to engage with our content...For the most part, people who are uploading videos are fans of our movies. They’re not trying to be evil pirates, and they’re not trying to get revenue from it”.
If most of the other major studios feel the same - and YouTube product manager David King reported a 90% conversion rate in the same article cited above, indicating pretty strongly that they do - it might be in their interest to emerge from the slightly-cowardly vagueness that makes 'Fair Use' too unreliable a defence for the 'hip' uploaders (that the studios ironically court - and perhaps imitate) to bypass the blanket copyright warnings plastered over YouTube. If we're helping, they ought to take the gun-sights off us and set some fair and clear rules.
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